Weak Judiciary Pushes Some Afghans To Taliban

By Abubakar Siddique, RFE/RL

When Kabul's mayor was sentenced to four years in
prison on corruption charges this week, officials were quick to paint the
sentencing as evidence of the "serious steps" being taken to eliminate graft and
bribery in Afghanistan.

Deputy Attorney General Fazal Ahmad Faqiryar, speaking to RFE/RL's Radio Free
Afghanistan after the December 7 verdict, said that the case of Mayor Abdul Ahad
Sahebi showed the "positive effects on society" that would result from the
government's efforts to fight corruption.

The very next day, however, Sahebi was back in the Mayoral Office after a higher
court granted him bail. And despite official statements that he is not allowed
to continue running the capital city, Sahebi did just that for nearly a week
before
finally resigning on December 13.

The fact that he stayed in office for so long astonished Afghans and, according
to Kabul University law professor Najeeb Mahmood, it has placed the entire
Afghan judiciary under the spotlight.

"Of course, the order to detain the Kabul mayor is a controversial matter. It
has brought the power of the judiciary and justice system of the country under
question," he says.

"When this order was issued, it was thought that the process of accountability
and fight against corruption had begun. But when he returned to work, it raised
concerns that the government lacks certain capabilities in its fight against
corruption."

Inefficiency, Bribery, And Nepotism

With the help of considerable international funding, Afghanistan has over the
past eight years established a network of primary and appellate courts that span
the country's 34 provinces and 365 districts and which are subject to the
Supreme Court in Kabul.

But efforts to improve a system plagued by inefficiency, bribery, and nepotism
appear to be failing to the point that many Afghans are turning to another power
for justice -- the Taliban.

The ranks of Taliban judges are often filled by barely literate mullahs, but
benefit from a reputation for being available when needed, and for not taking
bribes or contributing to bureaucratic red tape. And unlike the case of the
Kabul mayor, there is no questioning the authority of Taliban judges, who can
implement their decisions swiftly and decisively -- sometimes by shooting
alleged murders and rapists.

Kabul University law and political science professor Nasrullah Stanekzai says
the Afghan judiciary suffers from numerous complex and endemic problems. He
tells RFE/RL that the country needs more court houses, along with the trained
police officers, prosecutors, lawyers, and judges needed to help them function
effectively.

"There are some deficiencies in our laws and it is a problem. There is nepotism
and still there is the gun and the relationships flowing from it," he says.

"Corruption is another problem. And unfortunately, it is still seen [as rampant]
in different Afghan institutions, including the police and judiciary."

Stanekzai says that the formal legal system is rooted in Islamic law, while also
practicing secular law. At times, this places the mixed system in a compromising
position of competition with Islamic and customary laws adjudicated by clerics
and tribal leaders. The Taliban, meanwhile, forward their unique interpretation
of Islamic Shari'a law.

'Not Like Building A Road'

The clash of three judicial ideals leads many Afghans to seek to settle their
disputes in local councils, called jirgas and shuras, under local customary law.
However, the Taliban has considerably weakened tribal leaderships, leaving its
judges as the only viable alternative.

J Alexander Thier oversees Afghanistan and Pakistan at the U.S. Institute of
Peace, an independent nonpartisan Washington think tank. Thier says this
phenomenon is most evident in remote Afghan regions where the Taliban insurgency
is most active.

Thier, who has researched the Afghan legal systems for years, says that the
weakness and or absence of state courts push rural Afghans to seek arbitration
from the Taliban, "who will resolve disputes quickly and definitively and would
make sure that they are enforced."

In its role as the lead donor on judicial reforms in Afghanistan, Italy has over
the years spent tens of millions of dollars building court houses and training
Afghan lawyers and judges. Thier says that the efforts have made slow progress
in the cities but little headway in the countryside.

"Building a justice system is not like building a road," he says.

"It takes people and training and systems and legitimacy to be put into place.
The formal justice system has really not been rebuilt at all in the rural areas.
They simply have not had the resources to do that," Thier maintains adding that
the weakness or unavailability of the formal justice system in the rural areas
leaves people "either to the traditional justice system or to the Taliban
system."

He suggests that the short-term remedy for this problem is to link the
traditional justice system made up of shuras and jirgas to the formal courts
that fall under the authority of the Afghan state -- a throwback to the times of
peace enjoyed before the onset of wars in late 1970s.

Reining In the Warlords

Thier says this will provide Afghans access to a justice system supported by the
Afghan state and the international community. "Otherwise, if they secede the
territory of justice to the Taliban, I think that's very dangerous," he says.

"The Afghan government will not be legitimate if it is not seen to be involved
in the resolution of disputes; if it is not seen to be involved in justice."

Thier says that to permanently establish the rule of law, Afghan militia leaders
and warlords who still control key government posts or exert significant
influence must agree to abide by Afghan law.

Their successful resistance of this over the past eight years, according to
Thier, bred a culture of impunity that "undermined the government and created
space for the insurgency."

He still believes that establishing the rule of law is possible in Afghanistan.
"But you have to have all of the key parties buying in to the idea of the rule
of law and then implementing it. And we haven't yet seen that really since
2001."

Kabul University professor Stanekzai says that building a robust judiciary is a
key prerequisite for restoring stability and moving forward with reconstruction
and development in Afghanistan.

"Without a fundamentally strong judicial system we cannot find our way to
justice. And people cannot trust their government," he says.